Excerpt: - .....made in the plaint the plaintiffs alleged that a preliminary decree passed in a previous suit for partition being title suit no. 31 of 1947 was inoperative, fraudulent and not binding on the plaintiffs of this suit.the plaintiffs alleged that in items nos. 2 to 4 of the plaint in the present suit the plaintiffs have 8 annas share and defendant 2 the other 8 annas share and in item no. 1 the plaintiffs have 6 annas share; defendant 2, 6 annas share and defendant 1 the remaining 4 annas share. the plaintiffs also alleged that defendant i had executed the decree for partition in the aforesaid suit no. 31 of 1947 and was trying to realise the sums of money which under that decree were to be paid by the present plaintiffs. the plaintiffs further alleged that they were in possession.....

Judgment:

G.N. Das, J.

1. This is an application on behalf of the plaintiffs-petitioners and is directed against an order made by Mr. Fatik Chandra Roy Choudhuuy, learned Subordinate Judge, Hooghly, holding that the suit was not properly valued and stamped and requiring the plaintiffs to put in the deficit court-foes within one week from that date.

2. The plaintiffs' allegation in the plaint is that the disputed properties which are described in items Nos. l to 4 of the plaint belonged at one time to a joint family consisting of four brothers, Bama Charan, defendant 1 of this suit, Shama Charan, Panchanan and Satish. Shama Charan's son Kalipada is defendant 2 in this suit. Pancha-nan's widow Mahalauxmi is plaintiff 1 and his son Dulal is plaintiff 2. Satish is dead. On certain allegations made in the plaint the plaintiffs alleged that a preliminary decree passed in a previous suit for partition being Title suit No. 31 of 1947 was inoperative, fraudulent and not binding on the plaintiffs of this suit.

The plaintiffs alleged that in items NOS. 2 to 4 of the plaint in the present suit the plaintiffs have 8 annas share and defendant 2 the other 8 annas share and in item No. 1 the plaintiffs have 6 annas share; defendant 2, 6 annas share and defendant 1 the remaining 4 annas share. The plaintiffs also alleged that defendant I had executed the decree for partition in the aforesaid suit No. 31 of 1947 and was trying to realise the sums of money which under that decree were to be paid by the present plaintiffs. The plaintiffs further alleged that they were in possession of the disputed properties in spite of the aforesaid decree for partition. The plaintiffs accordingly prayed for a declaration (l) that the decree dated 24-7-1947, in suit No. 31 of 1947 was void, inoperative, fraudulent and not binding on the plaintiffs, and (2). that in item No. l of the plaint schedule the plaintiffs have 6 annas share, defendant 2, 6 annas share and defendant 1 the remaining 4 annas share and in the other items the plaintiffs have 8 annas share and defendant 2 the remaining 8 annas share, defendant 1 having no share in the said properties. The plaintiffs also prayed for a permanent injunction restraining the defendants from executing the decree obtained in the said suit No. 31 of 1947. The suit was valued at its. 13,950 for partition and a court-fee of Rs. 15 was paid therefor. The suit was valued at Rs. 50 for declaration and a court-fee of us. 2-13-0 was paid on the said sum of Rs. 50.

3. The defendants entered appearance and raised a preliminary issue, namely, whether the suit was properly valued and whether proper court-fees were paid. This issue was decided by the learned Subordinate Judge on 27-8-1951. The learned Judge was of the opinion that the suit should have been valued on an objective basis, that basis being the difference in the value of the plaintiffs' share as decreed in the previous suit for partition and the share as claimed in this suit. On this basis the learned Judge was of the opinion that in item No. l the increased share which the plaintiffs claimed was l/8th and the increased share claimed by the plaintiffs in items NOS. 2 to 4 was 1/4th. Taking the value of these items from the plaint the learned Judge valued the excess share claimed by the plaintiffs in item No. 1 at Rs. 500 and the value of the excess share in items Nos. 2 to 4 at Rs. 2487-8 annas, that is to say, the learned Judge thought that the objective value should be Rs. 2987-8 annas and calculating court-fees ad valorem, on this sum the learned Judge was of the opinion that the plaintiffs were required to pay Rs. 258-12 annas. The learned Judge directed that the deficit court-fees should be paid within one week.

The case was put up for hearing on 11-9-1951. On the said day the plaintiffs filed an application under Section 151, Civil P. C. for re-consideration of the order made by the learned Judge on 27-8-1951. This application was rejected by order No. 24. Then the learned Judge recorded the following order on the same day: 'Defendant files hajira. Plaintiffs take no steps. Suit dismissed under Section 8B (3), Court-fees Act on contest. Costs to the defendant.' It appears from the High Court file that the learned Judge drew up a decree embodying his order that the suit was dismissed under Section 8B (3), Court fees Act, and specifying the costs decreed in favour of the defendants.

4. Against the said order the plaintiffs filed a First Appeal in this Court on 3-1-1952. This appeal was registered as F. A. 48 of 1952. It appears from the Order Book that on 11-6-1952, an order was made by this Court directing the plaintiffs to deposit the initial printing cost on or before 3-7-1952, with a direction that in default of payment the appeal will stand dismissed. No deposit was made as directed and it appears that on 17-7-1952, an entry was made in the Order Book that the appeal had stood dismissed for non-payment of the initial printing cost.

5. On 4-1-1952, the plaintiffs also made an application under Section 151, Civil P. C. challenging the propriety of the order made by the learned Subordinate Judge on 11-9-1951, dismissing the suit under Section 8B (3), Court-fees Act. Notices of this application were served on the defendants and the office note states that these notices have been properly served.

6. Mr. Mitter, learned Advocate for defendant 1, has raised two preliminary objections. In the first place he contended that as the appeal had stood dismissed the application itself became incompetent. There is no force in this preliminary objection. The application with which we are now concerned is an independent application under Section 151, Civil P. C. and is directed against the order referred to above.

7. The second preliminary objection raised by Mr. Mitter was that the order under Section 8B (3), Court-fees Act, must be regarded as the rejection of a plaint under Order 7, Rule 11, Civil P. C. and must be deemed to be a decree within Section 2(2), Civil P. C., and an appeal was competent, that such an appeal had been filed and was allowed to be dismissed. The plaintiffs have accordingly lost their remedy.

8. The validity of this objection depends on the fact whether an order under Section 8B (3), Court-fees Act, must be regarded as rejection of a plaint under Order 7, Rule 11, Civil P. C. It may be pointed out that by the Court-fees (Amendment) Act, 1935, both Sections 6 and 8 were amended. Section 6 was amended so as to make it clear that when the plaint has been filed on a paper which is insufficiently stamped the Court shall direct payment of the deficit court-fees within a specified time and in case of default shall make an order directing the rejection of the plaint. Section 8B (3), Court-fees Act, which was added by the amending Act provided that after the summonses of the suit have been served on the defendants, at any time after the defendants have entered appearance or thereafter but before the delivery of the judgment, the Court can make an enquiry as to the sufficiency of the court-fees necessary to be affixed to the plaint and if the Court is of the opinion that the court fees already paid are insufficient the Court shall make an order either directing the plaintiff either to furnish security or to put in the deficit court-fees within a specified period. Section 8B (3) provides that in case of non-compliance with the said order of the Court within the time so specified by the Court, the Court shall dismiss the suit under Section 8B (3), Court-fees Act.

It was contended that though Section 8B (3) uses the expression 'the suit shall be dismissed,' the real effect of the order is a rejection of the plaint. Such an interpretation, though plausible, cannot be accepted. By the said amendments of the Court-fees Act, a distinction has been clearly drawn between the rejection of a plaint in Section 6(2) and the dismissal of the suit under Section 8B (3) of the amended Court-fees Act. We must therefore so construe Section 6(2) and Section 8B (3) of the amended Court-fees Act, and Order 7, Rule 11, Civil P. C., so as to make them consistent. It seems to us that the real intention of the Legislature was that if after the plaint has been filed the Court is of opinion that the plaint is insufficiently stamped, the Court can make an order for rejection of the plaint. If however the question of court-fees payable is gone into at a later stage after the defendant has entered appearance and the Court then comes to a decision and makes an order under Section 8B (3), the effect of disposing of the suit for non-compliance with the order for payment of court-fees is a dismissal of the suit under Section 8B (3), Court-fees Act. It is therefore not possible to construe a dismissal of the suit under Section 8B (3) as equivalent to a rejection of the plaint under Order 7, Rule 11, Civil P. C. This view was taken by one of the members of this Bench in the case of Sudhir Kumar v. Mohadeb Chakraborty, 52 Cal. w.N. 684.

9. The question there is whether the dismissal of a suit under Section 8B (3), Court-fees Act, can be regarded as a decree. The mere fact that a decree has actually been drawn up does not matter because the question whether a decision is a decree or not depends on the terms of Section 2(2), Civil P. C. An adjudication upon a matter of court-fees does not determine any of the matters in controversy in the suit. As such, a dismissal under Section 8B (3) cannot be regarded as a decree within Section 2(2), Civil P. C. It may be mentioned that the rejection of a plaint for non-compliance with the direction for payment of court-fees or otherwise under Order 7, Rule 11, Civil P. C., is expressly stated to be included within the definition of a decree under Section 2(2), Civil P. C. I am therefore of opinion that the dismissal of the suit under Section 8B (3) is not a decree and the order complained of was not appealable. Their revision petition is therefore competent provided the matter comes within Section 151, Civil P. C.

10. The question in this case is not a mere question of valuing the relief claimed. The question is bound up with the determination of the category to which the suit belongs for the purposes of determining the court-fees payable. In the present case the plaintiffs complained of a preliminary decree which was passed in a previous suit as being invalid and fraudulent and not binding on the plaintiffs. The prayer for a declaration which was made was not really necessary on the allegations made in the plaint. The decree was expressed to be and was in fact a preliminary decree. We have to consider the plaint as a whole and reading it as a whole I am of opinion that the suit as framed was really a suit for partition. The prayer for a declaration which was made in prayer (l) of the plaint was really an unnecessary prayer and was intended to meet a possible defence which might have been raised by the defendants.

It is well known that the passing of a preliminary decree does not bar a second salt for partition. The declaration which was therefore prayed for was a superfluous prayer and does not alter the nature of the suit itself. Regarded in this light, the plaint must be regarded as a plaint in a suit for partition with a prayer for an injunction. Such a suit cannot be regarded as coming within Section 7 (4) (c), Court-fees Act. It is not a suit for a declaration where consequential relief is prayed for but it is a suit for partition which comes within Schedule 2, Article 17 (6), Court-fees Act. The allegation in the plaint is that the plaintiffs are in possession. Section 7VIA, Court-fees Act can have no application in this case. As the suit conies within Schedule 2. Article 17 (6), Court-fees Act, court-fees payable on the prayer for partition is only Rs. 15. Mr. Mitter referred us to a decision of the Oudh Chief Court in the case of Mt. Rup Rani v. Bithal Das, 13 Luck. 628 (F.b.). In that case an item of joint property had been sold in execution of a prior decree. A final decree for partition had already been made. In those circumstances the Court was of the opinion that the institution of the suit could not be regarded as a pure suit for partition which would come within Schedule 2, Article 17 (6), Court-fees Act.

11. Nor does the principle enunciated in the case of In the matter of Kali Pada Mukherjee, 34 cal. w.N. 870 apply because the suit, as already stated, is not a suit for declaration with prayers for consequential relief. In the latter class of suits the plaintiff has to value the relief for the purposes of jurisdiction and court-fees at an identical figure. In my opinion, the learned Judge was not right in calculating the difference in the value of the relief which the plaintiffs got in the eaflier partition suit and the value of the relief which the plaintiffs prayed for in the present suit. Possibly, the learned Judge had in his mind the decision of the Patna High Court in the case of Sital Prasad v. Ramdas Sah, 18 pat. 267. In that case there was a previous completed partition, and the decision is clearly distinguishable. My conclusion, therefore, is that the suit has been properly valued and proper court-fees have been paid.

12. In the result, the orders complained of in the petition must be set aside and the preliminary issue must be determined in favour of the plaintiffs. The suit must be regarded as properly valued and stamped and it will now proceed to trial.

13. In view of the circumstances, we direct that the parties will bear their own costs.